Chapter 5: Hearsay + Litigation Strategy

Criminal process is commenced by

information

Civil process commenced by

specific court document

Pretrial process for criminal involves Crown giving evidence to the accused, this is called

disclosure

Pretrial process for civil matters involves exchange of evidence, this is called

discovery

In criminal case - goes first, in civil cases - presents evidence first

Crown

plaintiff

Evidentiary issues in criminal court are dealt with by

pre trial motions

voir dire

Evidentiary issues in civil matters

pretrial motions

or during trial as they arise

In criminal case if defendant believes Crown has not meet the standard of proof, they can ask for

directed verdict

In a civil case if the defendant believes plaintiff has not met its burden of proof, defendant can ask for

motion for non-suit

In criminal matters, accused is found either - or -

guilty

not guilty

In a civil trial the defendant is found to be - or not

liable

Liability

causing a wrong to someone that results in harm or damages

In criminal cases , if the accused is found guilty the judge will impose a

sentence

In a civil matter, if the defendant is found liable, the trier of fact will award - to the plaintiff

compensation

Theory of the case

your version of events/facts

Need to determine the - to support your theory and how to

evidence required

get the evidence before the trier of fact

Developing the theory of the case

determine evidence required to support your theory

determine all facts and factual conclusions upon which you need to rely

plan for how all the facts and factual conclusions will make their way into evidence

Categories of evidence

facts that do not need to be proven

facts that need to be proven by a witness

hearsay

business records

and more

Facts that do not need to be proven include

judicial notice

facts not in dispute

what comes up through examinations for discovery

General limitation period

2 years from the time the claim is discovered

Ultimate limitation period

15 years from the day the act or injury occurred

Criminal limitation periods

none for indictable

one year for summary

Evidence that the Crown wanted to introduce in R v Ngoddy was classified as -

hearsay

R v Ngoddy: what factors will a judge consider in determing whether this type of evidence is sufficiently reliable

context in which the statement was made

who else was present

potentially corroborating information

R v Ngoddy: what rights are being balanced

rights of the accused to a fair trial with the rights of the victim to access justice

In R v Bradshaw, the court established hearsay is presumptively -

inadmissible

Hearsay

statement, originally made out of court, that is repeated in court for the truth of its contents when the maker of the statement is not available for cross examination

3 aspects of hearsay

out of court statement

admitted for truth of its contents

statement maker is not available for cross examination

Fundamental rule of hearsay

not admissible evidence unless it meets a specific exception

Why is hearsay not admissible

concerns over reliability of the evidence

3 reasons hearsay raises reliability issues

not made under oath (no consequences)

can’t observe the person making the statement

can’t cross examine the person

Statements that are made out of court (can or cannot) be admitted for a purpose other than the truth of its contents

can

An out of court statement that is admitted for a purpose other than the truth of its contents may be admitted on basis of relevancy to show

what the person who heard the statement thought afterwards

its effect on the person

their state of mind

Leading case for out-of-court statements

Subramaniam v The Director of Public Prosecutions

In Subramaniam, the accused wanted to use the defence of

duress

T/F: implied statements can be hearsay

true

Implied statement

action, behaviour, or course of conduct that conveys information to others

Two types of implied statements

action intended to communicate info non verbally

action or behaviour that implies someone believes certain facts

Case that overturned the old case law on implied statements and said both types can be hearsay

R v Baldree

R v Baldree involved what facts

accused was charged with drugs for trafficking

caller phoned to arrange for delivery and officer picked up

officer had a conversation where he agreed to deliver drugs

no effort was made to find the caller

R v Baldree: trial

what officer said was not hearsay and statement was admitted

behaviour implied the truth that Baldree was a drug dealer

R v Baldree: SCC

two different types of implied statements are not to be treated differently